Czech Republic - Supreme Administrative Court, 18 December 2008, S.I.Ch v Ministry of Interior, 1 Azs 86/2008-101
| Country of Decision: | Czech Republic |
| Country of applicant: | Pakistan |
| Court name: | The Supreme Administrative Court |
| Date of decision: | 18-12-2008 |
| Citation: | 1 Azs 86/2008 - 101 |
| Additional citation: | Sbírka rozhodnutí NSS č. 4/2009 |
Keywords:
| Keywords |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Non-state actors/agents of persecution
Description
People or entities responsible for acts or threats of persecution, which are not under the control of the government, and which may give rise to refugee status if they are facilitated, encouraged, or tolerated by the government, or if the government is unable or unwilling to provide effective protection against them. |
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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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Religion
Description
One of the grounds of persecution specified in the refugee definition under Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, the concept of religion includes in particular the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief. |
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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
Headnote:
The applicant, being in a religiously mixed marriage, can be considered as a person having a justified fear of being persecuted for religious reasons. In accordance with the Qualification Directive, the deciding authority is obliged to gather sufficient information on the accessibility and effectiveness of protection provided by state authorities in the country of origin.
Facts:
The applicant, a national of Pakistan, met his current wife, a Ukrainian citizen and Christian, in the Ukraine. The applicant returned to Pakistan with his wife. Upon return they faced strong pressure and adversity from his Muslim family and the whole Muslim community. The applicant’s house was targeted in a shooting incident; he was physically assaulted and received threatening letters. The applicant and his wife returned to the Ukraine, where they faced assault from skinheads (a racist group in Ukraine). The applicant reported the attacks to the Ukrainian police, but the incidents were never investigated. He left the Ukraine and fled to the Czech Republic, while his wife and his children remained in the Ukraine.
The applicant argued that he belonged to a particular social group of people in a mixed religious marriage and to the particular social group of persons perceived to have left their religious traditions.
The Ministry of Interior (MOI) rejected his claim for asylum. The Regional Administrative Court upheld that decision. The applicant then appealed to the Supreme Administrative Court (SAC) which returned the case back to the Regional Administrative Court for further reconsideration.
Decision & reasoning:
The SAC rejected both the decision of the MOI, as well as that of the Regional Administrative Court. The SAC mainly disagreed with the reasoning of the Regional Court, as the case law cited and the country of origin information used was inadequate. The SAC agreed with the MOI that the applicant didn’t belong to any particular social group, however, in its opinion the lower court did not properly deal with the evidence of the assaults carried out for religious motives.
The SAC stated that the applicant gave an adequate and specific account of the persecution he faced due to his religious beliefs, which was also not properly dealt with by the lower court.
The Court stated that the MOI did not gather enough evidence concerning the situation of mixed marriages in Pakistan and the persecution that people in mixed marriages face. Further, that such evidence was not then applied to the individual elements of the term persecution.
In addition, the SAC challenged the reasoning of the Regional Administrative Court, namely, the fact that the applicant was obliged to prove direct persecution by state authorities or persecution supported by state authorities. The SAC held that Art 6 of the Qualification Directive stated that if non-state agents are actors of persecution, it is sufficient if the state authorities are unable to give protection to the applicant from such persecution. The SAC also noted that according to Art 7 of the Directive the legal system in the country of origin, in order to offer protection, has to be effective and accessible.
Outcome:
The Regional Court decision was cancelled.
Subsequent proceedings:
Subsequently the MOI decision was cancelled.
Observations/comments:
Case available at the website of the Supreme Administrative Court - www.nssoud.cz
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| Czech Republic - 1 Azs 13/2006-39 (Supreme Administrative Court) |
| Czech Republic - 2 Azs 92/2005-58 (Supreme Administrative Court) |
| Czech Republic - 5 Azs 63/2004-60 (Supreme Administrative Court) |
| Czech Republic - 6 Azs 45/2003-49 (Supreme Administrative Court) |
Follower Cases:
| Follower Cases |
| Czech Republic - Supreme Administrative Court, 30 September 2013, I.J. v Ministry of the Interior, 4 Azs 24/2013-34 |